


If 



nrQumwt~,o&Wer tWCoari, o^ 1 C^aiwvo, 



wyjlrvMi/ cco^e- eft \,V\«- tir'waXe/ gorwwct 




Glass 



Ld-ki 



Book .^3— 



sjff\, t 7//' . f. £uz%&, ^ 

ARGUMENT 
I 



OF 



SAI C. REID, JR., 



BEFORE 




t flaunt fl! ®laim«, 



IN THE CASE OF THE 



PRIVATE ARMED BRIG-OF-WAR GENERAL ARMSTRONG, 



ON A REHEARING, 



JANUARY 27, 1857. 



WASHINGTON 

185 7/- •''' 



s 



•^ 



><?3 






* 



ARGUMENT. 

THE CLAIMANTS OF THE BBIG GENERAL ARMSTRONG 

VS. 
THE UNITED STATES. 



In the United States Court of Claims, 

January 27, 1857. 
The Court having previously notified the counsel in this case that it 
desired to hear further argument before it rendered its final decree, 
Mr. Reid proceeded as follows : 

Ma) r it please the Court : 

In compliance with the desire of your honors to hear further argu- 
ment in the case of the claimants of the brig General Armstrong, I 
shall, in accordance with its suggestions, confine myself to the two 
points indicated, presuming the facts to be admitted : 

1st. As to the power of the court and the extent of its jurisdiction ; 
and, 

2d. As to the political obligation and legal responsibility of the 
government to the claimants. 

As to the power of this court, I shall endeavor to show that it ex- 
tends to the highest jurisprudence known to our country ; that it was 
created and established without the trammels and limits of ordinary 
courts of law, so that the rights of citizens of the United States should 
receive the due administration of justice. By the act establishing this 
court, it will be seen that it is the only tribunal ever created whose 
powers are unfettered and unlimited. All other courts, created by 
the federal government, or by the States, have their powers strictly 
defined. The judicature of this court is not defined ; neither is it con- 
fined by the expression of a single word in the act. It is neither pre- 
scribed by limits as a court of law nor as a court of equity. It is 
invested with but one general organic power of jurisprudence, and that 
power, delegated to it by Congress, was given to extend the estab- 
lishment of justice. 

The duties oi the court, however, are defined, and made imperative. 
The first section provides for every possible claim which can be made, 
in good faith, against the United States, either legally or morally, in 
conscience or equity. It says: "And the said court shall hear and 
determine all claims founded upon any law of Congress, or upon any 
regulation of an executive department, or upon any contract, expret* or 
implied, with the government of the United States, which may be sug- 
gested to it by a petition filed therein ; and, also, all claims which may 
be referred to said court by either house of Congress."* 

° See resolutions of the two houses of Congress. 



Is there any possible case which this clause does not cover; " any 
claim founded upon any law of Congress;" " upon any regulation of 
an executive department" — which means any act of an executive de- 
partment — by which the citizen may be injured or aggrieved ? This is 
clearly the true interpretation of the purview of the act, and is quali- 
fied and explained by the following clause : "or upon any contract, 
express or implied, with the government of the United States." The 
executive department, in this sense, is the government of the United 
States ; for it is clear that no contract, quasi contract or obligation, 
could possibly result from a mere regulation of an executive depart- 
mant, unless it was held to be an act of the executive. 

But to establish beyond all doubt the intention of Congress to give 
to this court jurisdiction of the highest equity, the concluding part of 
the sentence, "and, also, all claims which may be referred to said 
court by either house of Congress," makes it the duty of this court to 
entertain any character of claim that Congress may please to send to 
it for investigation. 

Again: this section declares, " it shall be the duty of the claimant, 
in all cases, to set forth a full statement of the claim, and of the action 
thereon in Congress, or by any of the departments, if such action has 
been had." Now, I ask why Congress imposed on the claimant this 
imperative duty, if it had not for it some special object f That object is 
free from ambiguity, and is apparent and patent. It intended that 
the proceedings of Congress on any claim should fully appear ; while 
it determined, at the same time, that the action had by any of the 
executive departments upon a claim should be fully set forth, in order 
that if there was error committed the court should take cognizance of 
it, and make the government responsible by granting relief. 

To confirm the intention of Congress that the court shall take the 
most equitable view of all cases that come before it, the fourth section 
says : " And be it further enacted, That in all cases where it shall ap- 
pear to the court that the facts set forth in the petition of the claimant 
do not furnish any ground for relief, it shall not be the duty of the 
court to authorize the talcing of any testimony in the case until the same 
shall have been reported by them to Congress, as is hereinafter pro- 
vided : Provided, hoivever, That if Congress shall, in such case, fail 
to confirm the opinion of said board, they shall proceed to take the tes- 
timony in such case." 

By this section it was the manifest intention of Congress, that even 
if the court did not find the claimant entitled to relief, after a review 
of the case by Congress, and it should determine otherwise, the court 
is compelled to entertain the case upon testimony to be taken. The 
court Avill mark particularly, that the word relief is used in the clause ; 
so that, if the court should be of the opinion that the claimant was not 
entitled to recover, under the strict iron rule of the law, yet if there 
be justice and equity on his side, the court is called upon to determine 
the case upon the facts, which, in conscience and equity, would call for 
the interposition of Congress. 

Under the seventh section, the court is required " to report to Con- 
gress the cases upon which they shall have finally acted, stating in 
each the material facts which they find established by the evidence, 



with- their opinion in the case, and the reasons upon which such 
opinion is founded." 

And this section further states: " And said court shall prepare a 
bill or bills in those cases which shall have received the favorable de- 
cision thereof, in such form as, if enacted, will carry tin- same into 
effect." This directory clause gives the court the power to frame a 
bill either based upon the strict letter of the law, or for relief upon 
the justice and equity of the case. 

But if there be any doubt in the mind of the court upon the inter- 
pretation of its powers, as construed under the sections of the act 
already cited, the 9th section vests the court, beyond all cavil or equivo- 
cation, with the broad equity jurisdiction claimed for it. It says: 
" And be it further enacted. That the claims reported upon adversely 
shall be placed upon the calendar when reported, and if the decision 
of said court shall be confirmed by Congress, said decision shall be 
conclusive ; and the said court shall not at any subsequent period con- 
sider said claims, unless such reasons shall be 'presented to said court as, 
by the rules of common laio or chancery in suits between individuals, 
would furnish sufficient ground for granting a new trial." 

By this section the court has the power to review and reverse its own 
adverse decisions, even after their confirmation by Congress, upon such 
reasons being presented to the court, "as by the rules of common 
law or chancery in suits between individuals would furnish sufficient 
ground for a new trial." 

This is the first provision ever made in the annals of jurisprudence 
in any country, that, after an adverse judgment shall have been con- 
firmed by a supreme tribunal, the claimant shall be permitted to ob- 
tain a re-hearing in the court of the first instance, upon rules governing 
a court of equity. It is the most unprecedented power ever conferred 
on any court since the establishment of this government. And Con- 
gress, in its wisdom, fearing that an oppression or wrong might be 
inflicted upon thejust rights of a claimant, has, in the plenitude of its 
lenity, and for the sake of humanity conferred this highest of all equi- 
table powers upon this tribunal. 

This, consequently, is a national court, with unlimited power and 
jurisdiction to hear and determine all claims of every nature whatso- 
ever arising between the citizen and the government, whether grow- 
ing out of statute law, treaties, contracts, or quasi contracts, or obliga- 
tions founded on international law; and whether the amount involved 
be one cent, or millions of dollars. 

This court has full and entire jurisdiction, then, of the case under 
its consideration, by the express declarations of two clauses under the 
first section of this act : First, by reason of an implied contract on 
the part of the government, which undertook to establish for itself a 
recognised principle of international law, and under which it asserted 
the reponsibility of a neutral power, in which the rights of the claim- 
ants were involved. This was its duty as a nation, in order to preserve 
intact its honor and respect, while at the same time the obligation 
rested upon it to protect and procure indemnity for its citizens. 
Secondly, because Congress admitting and asserting the principles of 
law to be correct, yet, on account of some disputed tacts, this case was 



6 

sent before this tribunal for its investigation, and to inquire into the 
action had by the executive department. 

The power of this court, then, and its jurisdiction, is not merely 
confined to cases arising under the statute laws, or contracts with the 
government, but it extends to the great law of nations, by which na- 
tions have bound themselves toward each other, and toward their 
citizens to be governed. The narrow, arbitrary doctrine cannot pre- 
vail, that this government will enforce justice under international 
law from a nation, but refuse it to one of its citizens before a court 
established by it with unlimited jurisdiction. We seek justice and 
relief under the law binding nations towards their citizens — that great 
public law which is recognised by nations, and whose compacts are 
binding as well between the citizen and the government as between 
nations themselves. 

I now proced, may it please your honors, to the second point of the 
argument. 

The position assumed by the government is, that it having used its 

exertions, and proceeded by a course, which, in its opinion was 

deemed the most politic to obtain redress for the claimants, and having 

failed, it is released from all further obligation, and cannot be made 

responsible for that course of policy which it thought proper to adopt. 

On this position, we are ruled under the strict injunctions of an ar- 
bitrary court of law, encircled by its tangled web of narrow and rigid 
decisions, by statutory enactments and official opinions, to show upon 
what authorities we assert the liability of the government. On the 
other hand, we are required to show wherein lies the political obliga- 
tion and responsibility of the government, and to consider of its effect 
upon the treaty-making power. 

The power of the government and its obligations towards its citi- 
zens, under the organic law and their political rights, must be first 
briefly referred to. 

The power of the government in all its branches is derived from the 
States, as delegated by them under the Constitution, and all powers 
not so delegated, are reserved to the States or the people. The gov- 
ernment, in consideration of the powers thus delegated to it, assumed 
the obligation to protect the citizen in life, liberty, and property, and 
all the rights with which a citizen can become invested under the 
government. It has no sovereign power. On the contrary, the exe- 
cutive frequently cannot act without the consent of the legislative 
department, and on some occasions, such as its exercise of the veto 
power, it is overruled and made subservient to the legislative. 

To support this position, I will read u few extracts from a speech 
delivered lately before the House of Representatives by that able 
statesman and jurist, General Quitman, on the powers of the federal 
government with regard to the Territories. 

And I must here be permitted to say, that this speech has by com- 
mon consent been universally admitted to be one of the clearest and 
most lucid exemplifications of the powers of the federal government 
ever delivered. In speaking of the sovereign power of Russia and 
England, he says, at page 11, of the printed speech: 

"In the nations to which I have alluded, this high controlling power 



is so prominent as to be readily seen and fixed. In our system, the 
elaborate work of a more enlightened age of the world, and a more 
advanced stage of the human intellect, it is not so easy to trace clearly 
the location of the sovereign power. It exists; but where? Does it 
rest in the federal government? Let us apply the test of the defi- 
nition I have given. Has the federal government power over all 
other powers? Not at all, sir. It is strictly limited; circumscribed 
by the most rigid limitations; forbidden, by its organic law, over 
which it has no control, from exercising many of the most important 
attributes of sovereignty. It can exercise no sovereign powers by its 
own intrinsic force. It is merely a part of the machinery of govern- 
ment, through which, as through an agency, some of the powers be- 
longing to sovereignty are put in operation. 

"Do the State governments possess this high sovereign power? A 
mere glance at their structure shows that they do not. The State govern- 
ments are the creatures of the State constitutions. They may be en- 
larged, restricted, modified, and even annihilated by the organic law. 
They are, therefore, subject to a higher power, and are not supreme 
or sovereign. As in the case of the federal government, they are 
merely the agents through which the sovereign power is exercised, 
and have not that high attribute of themselves. We must look fur- 
ther to find the deep sources of political authority. The origin, for- 
mation, and history of our system of government, as well as the 
frame-work of it, show clearly where this high power exists. It re- 
poses in the sovereign States of this great confederacy — not in the 
State governments, but in the /Spates." 

Again, at pages 12 and 13, he says: 

"In the articles of confederation, entered into shortly after the con- 
clusion of the revolutionary war, at the time when men, North and 
South, understood the structure of our government certainly as well 
as they do now, this language is used: 

'"Each State retains its sovereignty, freedom, and independence, and every power, jurisdic- 
tion, and right, which is not by these articles of confederation delegated to the United States 
in Congress assembled.' 

" 'Each State retains its sovereignty, freedom, and independence.' 
There was a separate sovereignty, a separate freedom, and a separate 
independence. Neither of these was delegated. Some powers, juris- 
diction and rights were alone for the time delegated, subject to be 
resumed by the sovereign." 

"The first article of the treaty of peace with Great Britain, signed 
a 1 : Paris on the 30th November, 1782, uses these significant terms: 

'"Art. 1. His Britannic Majesty acknowledges tho said United States, viz: New Hampshire, 
Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New 
Je-sey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and 
Gorgia, to be free, sovereign, and independent States ; that he treats with them as such ; 
anc for himself, his heirs and successors, relinquishes all claims to the government, propriety, 
and territorial rights of the same, and every part thereof. " 

"And so, Mr. Speaker, you may pursue the historicjrecord of the for- 
mation of our political organism, and look in vain for any act by which, 
that high power, which must exist in every political community, has 
been ceded from its original possessors — the States. The Constitu- 
tion of the United States was acceded to by the States, as States. Each 



8 

for itself, in its sovereign capacity, entered into the compact. We 
find in it the delegation of some of the powers of government, but no 
cessions of sovereign power. That rested originally with the States ; 
and there, I contend, it remains to-day. If it does not rest with the 
States, where is it? I hare shown that this government, being pos- 
sessed only of limited powers, for specified purposes, cannot be sover- 
eign. That high power, I repeat, remains where it originally 
rested — in the States of this Union ; and whenever it is called into 
action, it must flow from its pristine source." 

And again, he says, at p. 16 : " The Constitution is the work of the 
States, and they must construe it for themselves upon all questions 
affecting their rights. These would cease to be rights, if subject to 
the antagonistic power against which they were limited. It is absurd 
to suppose that the States, in the formation of the Constitution, jeal- 
ous of their great essential political rights, would have left them at 
the mercy of that very power, against the encroachments of which 
they were erecting a barrier. It is yet more absurd to suppose that 
they would have left them, by construction, to one department of the 
government — and that department, both from its mode of appointment 
and its tenure of office, the least responsible to the people." 

This has become the generally recognised doctrine of the most 
astute statesmen of all political parties in this country, and in it Gen- 
eral Quitman is sustained by that pre-eminent writer on political 
ethics, Francis Lieber. — [Part 1, p. 273.] He says: "Government 
is that institution or contrivance through which the State, that is, 
jural society, acts in all cases in which it does not act by direct opera- 
tion of its sovereignty as mentioned above ; or, in other words, gov- 
ernment is the aggregate of authorities with all that is directly 
controlled by them. It derives its power from the sovereign power of 
the State, that is, I repeat it, from the necessity of the existence of 
society. Governments have been frequently changed ; dynasties which 
wielded the supreme (not sovereign) power have been supplanted by 
others, or by republican governments. Now, has the displaced govern- 
ment ever taken with it the sovereign power, that is, has the nation 
or State left behind become incapable of providing in every way for 
itself from its own self-sufficient or sovereign power ? If the sovereign 
power rests in some one or something else than the State, then we have 
in the latter case two sovereign powers, which is absurd." 

But it will not be contended that the Executive has, in any sense, 
or under any grant in the Constitution, sovereign power over the 
rights of the citizen. Those rights, guarantied and secured to him 
by the Constitution, cannot be sacrificed, except - by incurring a re- 
sponsibility under the obligations imposed on the government to pro- 
tect and indemnify him. This principle is incorporated in the bill o:' 
rights of nearly every State constitution in the Union. The govern- 
ment has no sovereign power or control over the rights or property oi 
the citizen, except it be exercised for the general welfare, and then it 
becomes responsible to him. 

Lord Landsdown, in December, 1788, when the regency question 
was under discussion, said : 

"The people, my lords, have rights. Kings and princes have none. 



The people want neither charters nor precedents to prove their rights; 
for they are born with every man in every country, and exist in all 
countries alike, though in some they may have been lost. I wish, 
therefore, that the question of right to exercise the royal authority, 
which has been claimed and asserted, may be decided, in order that 
those who suffer oppression under governments the most despotic may 
be taught their rights as men. They will then learn that though their 
rights are not, like ours, secured by precedents and charters, yet as 
soon as they assert their rights they must be acknowledged." 

This power of sovereignty neither exists in the executive branch nor 
treaty-making power of the government ; neither in the legislative 
nor the judiciary ; and it cannot be said to extend to either, in the un- 
limited sense contended for by the solicitor, and under the obsolete 
doctrine that "the king can do no wrong." Lieber says, at p. 299, 
part 1, that — 

" The king can do no wrong, the king is the fountain of honor, 
are precisely in the same sense true and not true, as the preceding 
maxim, that the king never dies ; that is, they are fictions or meta- 
phoric expressions, and therefore incapable of sustaining any argu- 
ment to be deduced from them, but merely expressing an idea already 
established, and only so far as established. Blackstone distinctly 
claims the same inability of doing wrong for each branch of the 
legislature, (i, 244.) They are, then, no peculiar attributes of sover- 
eignty, using the term as applying to the person called by the English 
law sovereign. Besides, we know that the king, even constitutionally, 
can do wrong, and can be declared to have done so, as was the case in 
the bill of rights respecting James II ; that there is a ' superiority 
of the laws above the king,' (Blackstone iv, 440;) that the British 
law ' confirms the doctrine of resistance, when the executive magis- 
trate endeavors to subvert the constitution.' " 

Again, at page 301, he says : 

" No one shall obey the king personally and individually, but only 
politically, surrounded by the law. Whether the maxim, the king 
can do no wrong, with responsible ministers, be a well contrived expe- 
dient, is another question. I consider it as one of the choicest pro- 
ductions in the course of constitutional history ; but, at the same 
time, I say, with Essex : ' What ! cannot princes err? Cannot sub- 
jects receive wrong? Is an earthly power or authority infinitte? 
Let them (who mean to make their profit of princes) acknowledge an 
infinite absoluteness on earth that do not believe in an absolute infi- 
niteness in heaven.' 

Now, if it please the court, let us see how far the government has 
asserted its political obligation to protect the citizen under its national 
responsibility. 

In the case of Martin Koszta, who claimed the protection of the 
United States, having been seized in the neutral port of Smyrna, by 
the Austrian authorities, Captain Ingraham demanded him, .index- 
tended the protection of our flag. For this, Austria demanded satis- 
faction proportionate to the outrage. 

Koszta was not even an American citizen, but he had renounced his 



10 

allegiance to Austria, and declared his intention of becoming a citizen 
of the United States. 

What was the action of this government in that case? It stretched 
forth its might and power, and assumed a responsibility and a liability 
never before asserted. 

It commended, approved of, applauded, and rewarded the act of 
Captain Ingraham, though he had gone upon the very verge of war 
in demanding Koszta, and it took the responsibility of his act, Nay, 
sirs, it did more, it took a higher ground still ; it approved, with Eng- 
land and France, of the course of Turkey in a similar case against 
Austria. Mr. Marcy, in his letter to Mr. Hulsemann, (Ex. Doc, 1st 
sess. 33d Cong., vol. 1, pp. 34 and 35,) states the case. 

Here it will be seen that humanity and justice triumphed over even 
the obligations of a treaty and its stipulations ; and it was held that 
the duty to protect a political offender in neutral territory -was para- 
mount to treaty stipulations. 

The obligation of the government to protect its citizens and their 
property is fully set forth by Mr. Marcy at p. 42, ibid: 

" This right to protect persons having a domicil, though not native 
born or naturalized citizens, rests on the firm foundation of justice, 
and the claim to be protected is earned by considerations which the 
protecting power is not at liberty to disregard. Such domiciled citi- 
zen pays the same price for his protection as native born or natural- 
ized citizens pay for theirs. He is under the bonds of allegiance to 
the country of his residence, and if he breaks them, incurs the same 
penalties ; he owes the same obedience to the civil laws, and must 
discharge the duties they impose on him ; his property is in the same 
way, and to the same extent as theirs, liable to contribute to the sup- 
port of the government. In war he shares equally with them in the 
calamities which may befall the country ; his services may be required 
for its defence ; his life may be perilled and sacrificed in maintaining 
its rights and vindicating its honor. In nearly all respects his and 
their condition as to the duties and burdens of government are un- 
distinguishable ; and what reasons can be given why, so far at least 
as regards protection to person and property abroad as well as at 
home, his rights should not be co-extensive with the rights of native 
born or naturalized citizens?" 

By this joint decision of England, France, and the United States, 
in the case of Turkey, it is manifest that the neutral is bound to pro- 
tect all persons who seek their shores from the hostility of any other 
power. The obligation of Portugal to protect the brig General Arm- 
strong and her crew from the assault made by the British fleet is 
therefore indisputable. What would have been the action of this 
government towards Captain Ingraham, if he had permitted Koszta 
to be carried off in the Austrian frigate without firing into her ? His 
name would have been stricken from the Naval Register, and he de- 
nounced as a coward. He acted under the obligation of the govern- 
ment to protect and sustain him. Is the obligation of the govern- 
ment less in this case ? The two affairs are parallel. Both acted to 
sustain the honor of their country's flag. Suppose Ingraham had 
been in a private armed ship, and a conflict ensued by which he suf- 



11 

fered the loss of his vessel, would not the high moral responsibility 
rest on this government to procure indemnity, or, in its failure to 
make compensation ? But Ave are told if Captain Reid had struck 'his 
flag to the English, and acted the poltron and the coward, Portugal 
would then have been liable, and consequently this government re- 
sponsible. It may be asked, if Captain Reid at the tunc could have 
conferred with his government, would they have told him to strike 
his flag, or defend his country's honor? Yet it would seem, with 
the fullest admissions of the propriety of his course, they have neither 
had the honor nor justice to obtain for or make him compensation. I 
now ask the court to review the most important action of the icov- 
ernment in this case, and which seems not to have received that grave 
consideration to which it is entitled. I allude to the position taken 
by the government under the administration of General Taylor, in 
the instructions of Mr. Clayton to Mr. Hopkins. The despatch says: 
" In presenting this view of the subject to the Portuguese govern- 
ment, as a frank avowal of a fixed determination on the part°of the 
United States government, you will be most careful to represent, at 
the same time, the extreme anxiety of the President to avoid being 
forced to suspend or interrupt present diplomatic relations with 
Portugal ; because a recourse to that measure would, most probably, 
prove to be but the antecedent to reprisals." 

This position on the part of the government was followed up to the 
very last. The final instructions of the government to Mr. James B. 
Clay reiterates its positive determination never to consent to arbi- 
trate this claim. Mr. Clayton says : 

" In regard to a reference of our claims to an arbiter, which has 
been indicated, the President has directed me to say that no such 
course will, under the circumstances, receive his t auction , and this for 
reasons too obvious to need enumeration." 

After Mr. Clay left Lisbon in the national ship-of-war sent to re- 
ceive him, and when all diplomatic relations were suspended, this 
fixed determination on the part of our government was re-echoed 
again and again to Mr. Figaniere, the Portugal minister at Wash- 
ington. 

Here was a responsibility assumed and asserted as boldly as in the 
Koszta case. The determination of the government to resort to re- 
prisals, as indicated in the letter to Mr. Hopkins, if Portugal did not 
pay us, is self-evident. That position had been taken, and the act 
was in the course of execution, when the President died. Congress 
alone had the power to control the decision of the Executive — the suc- 
ceeding administration had no right to usurp the authority of re- 
versing that decision. 

It must be distinctly understood, and kept clearly in view, that the 
government, by the course it had taken, was defending and main- 
taining, for itself, its national honor and respect, although our rights 
were incidentally involved. It could not withdraw from this position 
without suffering a degradation and humiliation which the people nor 
Congress would ever have consented to submit. The solicitor has 
been called on, in vain, for authorities to show the power or right of 



12 

the succeeding administration to reverse this action and decision of 
the government. 

A question here presents itself for the profound consideration of the 
court. 

Had the then Executive lived, would Congress have recommended 
reprisals, or would the case have heen submitted to arbitration ? 
Would Congress have permitted this government to sink into mean- 
ness, and lose its self-respect, or would it have maintained the 
Executive in preserving the bright escutcheon of its asserted honor? 
Was not the obligation here voluntarily assumed by the Executive, 
as great at least, to procure justice for us, as it was in the Koszta 
case ; and was not its responsibility a thousand times greater? 

We have the positive assurance, guarantied to us by the unani- 
mous reports of the Senate and House Committees on Foreign Affairs, 
that had this case been submitted to Congress by the Executive, it 
would never have agreed to arbitrate this claim. Tbe committee of 
the House say : 

" The committee are of opinion that, under the circumstances the 
claimants had a right to consider the repeated recognition by the dif- 
ferent administrations of this jj;overnment of the justice of their claim, 
and the determined action upfn it by General Taylor, as carrying with 
it the force of a judgment in their favor, which a succeeding adminis- 
tration had no power to review and unsettle. 

" In the cases of Pottinger and Spense, (reported in the Opinions of 
the Attorneys General of the United States, vol. 1, p. 486,) the ques- 
tion arose, under John Quincy Adams' administration, how far the 
then Executive was ' authorized to review and unsettle the acts of its 
predecessor.' Mr. William Wirt, Attorney General of the United 
States, (October, 1825,) held that, 'If it has such authority, the 
Executive which is to follow us must have the like authority to review 
and unsettle our decisions, and to set up against those of our prede- 
cessors ; and upon this principle, no question can be considered as 
finally settled.' 'Hence I have understood it to be a rule of action, 
prescribed to itself by each administration, to consider the acts of its 
predecessors conclusive, as far as the Executive is concerned. It is 
but a decent degree of respect for each administration to entertain of 
its predecessor, to suppose it as well qualified as itself to execute the 
laws according to the intention of their makers, and not to set an ex- 
ample of review and reversal, which, in its turn, may be brought to 
bear upon itself, and thus keep the acts of the Executive perpetually 
unsettled and afloat. In conversing with President Adams on this 
subject, I understood him to concur in the general rule of considering 
all acts of the preceding administration as final ; and although par- 
tial injuries may now and then remain unredressed by the operation 
of this, in common with all other general rules, yet it is better to bear 
that partial evil, or leave it to legislative redress, than to introduce 
the more extensive and incalculable evils which must result from con- 
sidering all the past acts of the past Executives as open to reconsid- 
eration and readjuclication at the pleasure of the individuals who 
were interested in them. And if a decision made in regard to these 
gentlemen eight years ago, during the Presidency of Mr. Monroe, is 



13 

open to review and reversal, I do not see upon what principle of 
discrimination we can refuse to review and reveree a decision made 
during the Presidency of Mr. Washington,' &c, &c. 

" Congress, under the Constitution of the United States, alone has 
power, in a large numher of cases, to redress a gross and manifest 
injury done to a citizen. In England, in similar cases, the subject is 
permitted to institute suit against his government before the ordinary 
tribunals of justice. In a late case of the kind, (De Bode us. Regina,) 
where a British subject claimed to be entitled to compensation for cer- 
tain losses suffered by him through confiscation of his property in the 
first French revolution, which had been the subject of a convention 
between England and France, (reported in 16th Eng. Com. Law and 
Equity Reports, p. 23,) the Lord High Chancellor used the following 
language: 'It is admitted law, that if the subject of a country is spo- 
liated by a foreign government, he is entitled to obtain redress from 
the foreign government through the means of his own government ; 
but if, from weakness, timidity, or any other cause, on the part of his 
own government, no redress is obtained from the foreigner, then he 
has a claim against his own country.' 

" The only ground on which the validity of this claim can be ques- 
tioned is entirely technical in its character, and not to be enforced 
against the evident demands of justice. It is not a point of law that 
is to be decided, but a principle of national honor that is to be vindi- 
cated. 

" The gallant sailors who were attacked in the neutral port of Fayal 
doubted not that they would be protected in their just rights by the 
full power of their government ; and having had repeatedly, since, 
the approval of their conduct by the authorities of their country, your 
committee are of opinion that a stronger case for redress in equity 
could scarcely be made out, and therefore report the accompanying 
bill, and recommend its passage." 

This committee of the House was composed of the late distinguished 
Judge Bayly, of Virginia ; Judge Harris, of Alabama, celebrated as a 
jurist; Mr. J. R. Chandler, of Pennsylvania ; Mr. Ingersoll, of Con- 
necticut, a distinguished lawyer; Mr. Taylor, of New York; that able 
statesman and jurist, Mr. Clingman, of North Carolina ; Governor 
Shannon, of Ohio ; William Preston, of Kentucky, a lawyer of distin- 
guished ability, and Judge Perkins, of Louisiana, whose reputation as 
a national law jurist is well known. These gentlemen, representing 
nine of the largest and most influential sovereign States in the Union, 
whose combined delegations would carry by a majority any measure 
before the House, ratified this decision. 

This committee fully endorsed and concurred in the report of the 
Senate committee, composed of Judge Mason, of Virginia; Judge 
Douglas, of Illinois; Mr. Slidell, of Louisiana; Judge Clayton, of 
Delaware; Colonel Weller, of California, and Mr. Nonas, of New 
Hampshire. The Senate committee say: "Under all the peculiar; 
circumstances of the case, the committee are of opinion that the claim- 
ants are justly entitled to relief on strict legal principles ; and even 
were their convictions on the subject less decided than they are, they 



14 

would find in the heroic conduct of Captain Reid and his gallant crew 
■strong inducements to give them the benefit of their doubts. 

" There are two points of general interest involved in this matter, 
which should not be without their influence on the action of the Senate. 
The effect to be produced on our own citizens by according indemnity 
in stimulating them to emulate the noble example of Captain Reid ; 
for there can be no doubt that if he had suffered himself to be captured 
without resistance, full pecuniary satisfaction would long since have 
been accorded by Portugal to the claimants. Shall we refuse it be- 
cause he has added to our naval history one of its most brilliant pages ? 
Again: if we act upon the avowed principle that our citizens are always 
to be compensated for any injuries they may suffer from the violation by 
belligerents of the laic of nations, other countries will be more earnest 
in maintaining the inviolability of their territory." 

Now let it be remembered by the court, that this unanimous report 
of the Senate committee was made after the closest investigation of 
the case, and in the face of the letter of Mr. Secretary Marcy to Judge 
Mason, construing the letters of the claimants into acquiescence to the 
arbitration. 

Here we have the unanimous and solemn decision of the committees 
of both houses of Congress, staking their reputations as judges and 
jurists, and publicly avowing to the world that we are justly entitled 
to relief on strict legal principles. 

The opinion of Attorney General Wirt, and the decision of the 
committee of the House of Representatives — " that the claimants had 
a right to consider the repeated recognition, by the different adminis- 
trations of this government, of the justice of their claim, and the de- 
termined action upon it, as Carrying with it the force of a judgment 
in their favor, which a succeeding administration had no power to 
review and unsettle" — is entitled to the most solemn consideration 
of this court; for, as Leiber says, (part 1, pp. 265-267,) " public 
opinion is public law:" and he remarks, it was not without a deep 
meaning that, with reference to the late interesting libel case of Stock- 
dale vs. Hansard, the printer to the House of Commons, some British 
papers, (journals,) in June, 1837, in giving Lord Deman's decision 
against the printers for having published, under the direction of the 
House, certain documents containing slander, headed the article, 
"The Law versus the House of Commons." And if it be true that 
this court has no power to examine into the wrongs committed by the 
Executive towards our citizens, as contended by the solicitor, by what 
authority does he claim the right of this court to run counter, and sit 
in judgment on the acts of the committees of the Senate and House of 
Representatives ? 

Now, let us take a glance at the position of our government before 
this claim was referred to arbitration. Mr. Clay — in the presence of 
the American fleet, then lying in the Tagus, having obeyed the will 
of the Executive, and refused to accept the bonus offered by Portugal 
to refer this claim to arbitration — had left the country. All diplo- 
matic intercourse was suspended. The case was preparing to be sub- 
mitted to Congress. The claimants were daily expecting that their 
claim would be paid finally by Portugal, or that Congress would 



15 

order reprisals. General Taylor died, refusing, to the last moment 
of his life, to submit this claim to arbitration. On the accession of 
the new administration, Mr. Clayton, on leaving the Department of 
State, informed his successor of the position of our foreign relations 
and explained to him the attidude of our government towards Portu- 
gal, and that the papers were preparing to be submitted to Congress. 
Mr. Clayton's testimony to the sequel of this transaction is as fol- 
lows : — (See report of this case, p. 48 and 49.) 

" Well, sir, at this crisis, when all the other claims were about to be 
paid — and I verily believe this was also about to be paid — the President 
died. Within three days after my successor went into office, he agreed 
to refer the claim to the Prince Louis Napoleon. I know that, be- 
cause he called upon me, and, in the course of the conversation, noti- 
fied me that he had made that arrangement with Mr. Figaniere, the 
Portuguese minister. * * * I thought the circumstances of the 
case so clear against that government, and her conduct so atrocious, 
that there ought to be no reference of a claim which was so clearly 
right." 

Again, he said: "In this case, the claim was referred to the arbi- 
tration, without the consent and without the knowledge of the claim- 
ant. He had not the slightest information that such a thing was in 
progress." " Within three days after the matter came into the hands 
of my successor in the office of Secretary of State, he agreed to refer it. 
I know this of my own knowledge. At that very moment, the claim- 
ant was confidently expecting that this claim would be paid. Other 
claims had been given up, and he had every reason to suppose that 
this also would be paid." 

The new Executive, then, previous to consenting to refer this case, 
was in the full possession of the fact, that the American ilag had 
been sent to the shores of Portugal, unfolding a demand over which 
the escutcheon of the national honor of this republic was pending ; 
and because the government had refused the corrupting offer as the 
price of its degradation, it was bidden defiance. 

This new administration, with the full knowledge of these facts, 
proceeded of its own accord — without our knowledge or consent, and 
against the known express and declared will of the previous Execu- 
tive, that he would never consent to arbitrate this claim — and within 
three days after its formation, agreed upon this diplomatic marriage 
treaty. 

" Oh ! most wicked speed, to post 

With such dexterity to meretricious sheets!" 

The history of this submission, and the manner under which it was 
conducted under the treaty and protocol, is familiar to this court. 
What a ridiculous farce, then, it becomes, to assert that we acquiesced 
in this arbitration, when the Executive knew well that it was acting 
in direct conflict with, and in opposition to, the declared will and in- 
junction of its predecessor? But to charge us with having consented 
to a submission which had been agreed upon almost a month previous 
to the letter written in answer to the inquiry made to ascertain the 
fact, and requesting the government to take no step that would com- 
promise our rights, needs no reply. 



16 

But, I contend that the letter of the Hon. Secretary Marcy to the 
Hon. Mr. Mason, chairman of the Committee on Foreign Relations, 
lays down the true doctrine of the liability of the government in this 
case. He says : 

" I cannot countenance the principle that, where this government 
is called on by a citizen of the United States to interpose for the pur- 
pose of recovering claims against any other government, proceeds in 
good faith for that purpose, and fails in its object, or obtains what may 
be regarded as an inadequate indemnity, it places itself in a situation 
to be called on to pay the claims, or to satisfy the expectations of the 
claimants. Our government is but an agent in such cases ; and unless 
it acts against the express or known wishes of those icho have invoked 
its interposition, it does not, as I conceive, incur any liability what- 
ever to the claimants." 

And now, Iask, were the proceedings had, in submitting this claim 
to arbitration, in accordance with good faith for that purpose ? Were 
they not in violation of the good faith of the nation pledged not to 
arbitrate this claim? They most certainly were. And did it not 
tl act against the express and knoivn wishes of those who had invoked its 
interposition, by informing them that their objections and suggestions 
were too late, and afterwards by concluding and ratifying a treaty 
which had been agreed upon before that interposition could, by any 
possibility, have been invoked.' 

This submission was not only contrary to the express will of the 
claimants, but that of the decision and determination of the previous 
Executive. It is in vain to escape from this conclusion ; and the 
liability of the government on this ground alone is clear and indis- 
putable under the original obligation of the government to the citizen, 
as well as by the doctrine asserted and recognised by Secretary Marcy. 

I now desire to direct the attention of the honorable court to the 
position taken by the learned solicitor and in that of the dissenting 
opinion of this court. 

It is contended on the part of the solicitor that the government 
cannot be made liable for the acts of its agents or officers in the con- 
duct of public affairs ; and he cites an opinion of the law officer of 
this government to affect this claim. The opinion of the Attorney 
General is entitled to no greater weight than that of any other distin- 
guished lawyer ; it is but the spinning of a thread from out the soli- 
tary brain of an individual. But while I do not wholly concede the 
correctness of the opinion, I deny its applicability to this case. 

The dissenting opinion of the court maintains the same doctrine. — 
(See report of this case, p. 220.) 

On this point also, and in this connexion, the solicitor has cited 
two authorities (6 Peters, pp. 729, 130, and 14 Peters, p. 458,) to show 
that the action of the Executive is conclusive, and that this court has 
no power to review it. We have always admitted that, so far as the 
treaty obligations between Portugal and the United States are con- 
cerned, the matter is conclusive, but not between this government and 
its citizens. The authorities cited do not affect this case i r the least, 
because the liability of the government does not attach, and we do 
not assert it on the ground of the United States having made the 



17 

treaty, but from the consequences growing out of this treaty, pre- 
cluding our rights against Portugal. 

Can it be said, on the one hand, that the action of the government, 
under the administration of General Taylor, was not decisive and bind- 
ing on its successor, while, on the other hand, that the aotioD had under 
the administration of Mr. Fillmore is final and conclusive against the 
citizen, and that though it be admitted erroneous, no responsibility 
attaches because of the act of an irresponsible agent? 

The question then arises whether the act of the Department of State 
was, or was not, the act of the Executive — or whether the act of sub- 
mission by the Secretary of State was his sole individual act, as an 
officer, or agent of the government, separate and distinct from, and 
wholly unconnected with the Executive, and on whom no responsibility 
can rest for the act of his Secretary? The treaty making power is 
vested in the Executive and the Senate. Kent fully defines the powers 
of the President in 6 ed. vol. 1, p. 284 to 288. 

It is clear that the jyublic secretary of the President has no power to 
submit the claims of our citizens to arbitration, or to negotiate a 
treaty. But, on the contrary, the President alone is declared to be the 
constitutional organ of communication with foreign powers, and the 
"efficient agent" in the conclusion of treaties. Agent of whom? 
Agent of the government, or the agent of the people? That people 
who created him, and delegated to him, under the Constitution, those 
subscribed and limited powers, in which can be found no authority 
or sovereignty over the rights of the people ! 

Kent declares, in defining the powers of the Executive, -that the 
President is bound to see that the laws are faithfully executed, and 
that he is generally charged with the powers and responsibility of the 
Executive Department ! And, furthermore, that, for exceeding the 
precise and definite limitations imposed upon the exercise of his 
power, the Constitution has rendered him responsible by law for mal- 
administration. Pesponsible not only, I contend, to be impeached, 
but responsible through the government, directly to the people, who 
shall suffer by his mal-administration. 

It is incontrovertible and manifest that the Secretary of State can 
only act by and under the instructions and authorization of the Pre- 
sident. The Department of State is only a branch of the Executive. 
It is a component part of the executive government. The Secretary 
of State stands in no position as agent, either to the government or 
the people. His office is simply ministerial, because he is only acting 
under a superior authority. His position is widely different, and en- 
tirely distinct from that of a mere official agent of the government, 
such as a marshal or collector. The distinction is this: An official 
agent of the government is simply entrusted to perform and carry out 
those duties and functions relating to the internal regulation- oi the 
government, being in no manner connected with the executive power, 
further than the performance of duties imposed on such officer by 
positive law. 

In all the domestic and foreign communications made to the Presi- 
dent, the Executive answers through the public secretary of the gov- 
ernment. In all these official acts and communications the secretary 
2 



18 

invariably uses the language, ' ' I am directed by the President to say, ' ' 
&c. Will it be asserted by this court that Mr. Clayton acted simply 
as the agent of the government, without the authority and direction 
of the President? With what truth, then, can it be maintained that 
Mr. Webster was not the instrument of the Executive, but acted in- 
dependently, as a mere agent, without attaching any responsibility on 
that Executive? 

If the position taken by the solicitor, and, in the dissenting opinion 
of this court, be correct, that the Secretary of State is only the agent 
of the government, and that the government is not responsible for his 
act, then it must inevitably follow, as an incontestible conclusion, that 
the treaty which was made is without force or effect, and the claim- 
ants cannot be concluded by it. 

It is in vain, sirs, to shift the responsibility of the government in 
trying to sever its political connexion by such distinctions, admitting 
of no difference. 

Why, sirs, what a chameleon thing — what a miserable shadow be- 
comes this government if such a doctrine is to prevail. 

Mr. Secretary Marcy gives an apt illustration of this changing 
positions, and slight- of-hand hocus-pocus of governments, in his cele- 
brated Koszta letter, (see p. 37 ;) he says : 

" By the consent and procurement of the Emperor of Austria, 
Koszta had been sent into perpetual banishment. The emperor was 
a party to the expulsion of the Hungarian refugees from Turkey. 
The sovereign, by such an act, deprives his subjects to whom it is ap- 
plied of all their rights under his government. He places them 
where he cannot, if he would, afford them protection. By such an 
act he releases the subjects thus banished from the bond @f allegiance. 
Any other result would make the political connexion between the 
subject and the sovereign a state of unmitigated vassalage, in which 
all the duties and no rights woidd be on one side, and all the rights and 
no duties would be on the other." 

This is the precise position now assumed by the solicitor in this 
case. He claims for the government all the power and no duties or 
obligations, on the one hand, while he denies the citizen all his rights, 
^,nd claims from him all the duties on the other. This would indeed 
be unmitigated vassalage ! 

Are we, then, to be stripped of our immunities, as American citi- 
zens, by this assumed imperial sovereignty, which, while it usurps 
the power to sacrifice our rights, denies its responsibility ? Are we, 
Koszta- like, to be banished from the protection of our country, and 
told that it is neither under any obligation to enforce our rights, or 
under any responsibility to indemnify us? Why, sirs, even under 
this tyrannical, despotic government of Austria, a more enlarged 
spirit of justice and equity prevails. It is reported that the tribunals 
of Austria have held, that a humble shoe-maker might bring his ac- 
tion against the emperor, on a common contract ! 

Let us suppose for a moment, in the Koszta case, at the time he 
was held in custody by the French consul at Smyrna, awaiting the 
final action of this government, that President Pierce had died, and 
the succeeding administration abandoned and reversed the position 



19 

and action of Mr. Marcy, what would have been the public opinion? 
It certainly would have condemned the right of the executive so to 
do, while the power to act could not be denied. 

Sirs, this is the only case to be found on record, in the whole his- 
tory of our government, in which a succeeding administration had 
imperilled the national honor by receding from the position of a pre- 
vious administration, assumed upon unequivocal and undoubted tes- 
timony of the legality and justice of the claim it had pledged the 
national honor to assert. 

Now, I ask the learned Solicitor, was it the act of the Executive, or 
that of the Department of State, that assumed the responsibility in 
the Koszta case, and was not that act beyond the right of interference 
by any other administration ? 

I submit to your honors if it be not clearly shown that the Execu- 
tive, in this case, in referring it to arbitration, acted against the 
express and known wishes of the claimants, which had been signified to 
the previous Executive. The succeeding administration was informed 
of and knew this fact. It acted in secret, and on its own responsibility ; 
without reference either to the previous action of the government, or 
consulting with the claimants to ascertain their wishes. It took the 
responsibility of reversing the position of this case, and the settled 
and final decision of the past Executive, which we contend it had 
not the right to do. It was bound to have sent the case to Congress 
for its legislative decision. But as it did not do so, and having taken 
the responsibility to arbitrate the claim and failed, the failure to pro- 
cure indemnity carries with it the force of an obligation to recompense 
the claimants. 

The dissenting opinion of the court maintains the sovereign capacity 
of the Executive, and quotes Mr. Adams to show that it was proper to 
compromise this claim. — (See the Report, p. 223.) 

As a general principle, I do not deny the doctrine of Mr. Adams, 
provided the negotiation is properly conducted. The political obligation 
which rests upon the government is that it shall, in all its transactions, 
see that the solemn forms of the law are fully and completely executed 
and gone through, with a due regard to the claimants' rights ; while, 
on the other hand, in its negotiation with another nation, it must see 
that the forms, equally solemn and imperious, shall be strictly com- 
plied with. Can it be said that, in negotiating the treaty with Por- 
tugal, this organic rule, " that the Executive shall see that the solemn 
forms of the law are fully complied with, and executed with a due re- 
gard to the claimants' rights," was strictly observed.' 

If the Executive had strictly complied with this rule, he would have 
carried out the solemn decision of his predecessor. For it is admitted 
in the learned dissenting opinion, that where the governmenl assorts 
to interfere for the citizen, its action may be even by reprisals. 

There is no room for doubt but that ivas the evident intended re- 
sort, by General Taylor, if Portugal had not complied with the 
demand. And I feel to-day morally certain, if the action of < Jeneral 
Taylor had been carried out and' the case submitted to Congress, 
Portugal would have immediately yielded to our just rights. 

The learned judge in his dissenting opinion seems to haw forgotten 
the position taken by the previous administration, and lias not con- 



20 

sidered the rights of the claimants in connexion with its reversal. It 
must he remembered too, that in 1818, Mr. Adams reiterated this 
demand against Portugal, declaring its justness upon the admitted 
acknowledgments of the Portuguese authorities. But while the dis- 
senting opinion denies that the government acts as the agent of the 
citizens, Mr. Marcy, Mr. Justice Story, Lieher, and our leading dis- 
tinguished jurists assert the contrary. 

Let us now examine the effect of this treaty on the claim in equity 
which we make against the government. 

Can it he established that this treaty making power — the act of the 
Executive, combined with the co-operation of the Senate — is. sovereign, 
supreme, and omnipotent, having no liability or responsibility attached 
to it ? That because of this power, delegated by the people, no wrong or 
injury to the citizen can be committed or result from it, and that all 
treaties so made by consequence shields the responsibility of the gov- 
ernment to the citizen? If this be so, then our government is arbi- 
trary, despotic, and tyrannical, and the Constitution by which its 
powers are strictly defined and limited is mere blotting paper. 

In the case of the schooner Peggy, (1 Cranch, 103,) the Supreme 
Court of the United States held that individual rights, acquired by 
war, and vested rights of the citizens, might be sacrificed by treaty 
for national purposes. And, in the case of Ware vs. Hilton, (3 Dal- 
las, 199, 245,) it was said to be a clear principle of national law, that 
private rights might be sacrificed by treaty to secure the public safety, 
though the government would be bound to make compensation and 
indemnity to the individuals whose rights had thus been surrendered. — 
(1 Kent, 167.) The power to alienate and the duty to make compen- 
sation are both laid down by Grotius, (b. 3, c. 20, sec. 7,) in equally 
explicit terms. 

These authorities cannot be overthrown — the principle is clear, the 
law is positive. The solicitor does not even attempt to controvert it. 
His whole argument is directed to create in the mind of the court a 
fear and a terror of its assuming the responsibility of reviewing the 
action of the Executive, and of placing itself in direct conflict with the 
treaty making power. This position is only an imaginary one, and 
is wholly irrelevant to the question of the responsibility of the govern- 
ment now before the court. This question does not involve the court 
in a conflict with the power of the Executive and Senate, nor is the 
court called upon to revise or reverse their action, as the solicitor con- 
tends. The power of the Executive to make this treaty has never been 
contradicted or denied. The policy, and its right so to do, under the 
peculiar circumstances of this case, have been gravely questioned. 
By the course of this policy has arisen its liability, growing out of 
its duties and obligations towards the claimants. We have never 
assumed, in any manner, an antagonistical position in opposition to 
the power of the Executive to treat, or denied the binding force of the 
treaty between the two nations. On the contrary, between them, the 
two treating powers, we hold and assert that it is res judicata. It is 
simply the effect and operation of this treaty on the rights of the 
claimants, from whence arises the obligation of the government to 
its citizens, as declared by the Supreme Court of the United States in 



21 

the cases cited in Cranch and Dallas. This position, supported by 
the high authorities cited, cannot be disturbed. 

The confusion of theories which the Solicitor has heaped up like a 
fog bank in this case, needs only the calm light of reflection on tin- 
true question before the court to dispel it entirely. This mist of 
terror which he has raised for himself before the eyes of the court, to 
prevent it from seeing a naked question of right, which is totally un- 
connected, and every way isolated from the power of the treaty making 
branch of the government, is perfectly transparent. 

Divest the case, then, of this mock sanctity of sovereign power 
which the Solicitor has such a pious dread of violating, and lei u^ see 
where we stand. 

No exercise of power resulting in a wrong to a citizen, or the sacri- 
fice of his rights, can be committed under the federal government 
without a responsibility, either to a superior authority or directly to 
the people. If the government has power and rights to exercise, it 
also has duties and obligations to perform. Those duties and obliga- 
tions imply as well rights and immunities on the part of the citizen. 
For even Lord Landsdown has said, "the people hive rights, kings 
and princes have none." We are not questioning the poicer of the 
government, under any circumstances, to make a treaty, nor its right 
to sacrifice or surrender the claims of its citizens for the general wel- 
fare of the country, under the obligation to indemnify them. But the 
right of one administration to reverse the decision of another is a dif- 
ferent affair. Even then, it has the power, while the right is ques- 
tionable. The power of the government is one thing — the right to 
exercise that power, without a responsibility, is another. The prin- 
ciple is fully recognized, and Secretary Marcy admits the government 
to be but an agent ; and he says the government is liable where it 
acts against the express and known wishes of the citizen. It did so 
act in this case, and made a treaty, to which, we have shown, we were 
no parties in any sense. It took our rights, sacrificed and surrendered 
them, and bound itself to submit to the decree of an arbiter against 
the consent and the express and known wishes of the claimants. 

We are not, then, arraigning or trying the government, nor sitting 
in judgment on its acts, in the sense contended by the solicitor. We 
are but trying the question of the right of the citizen against the gov- 
^ernment, for a wrong and injury sustained. Can the finding of this 
court on a naked question of the right of the citizen reflect in any 
manner upon the government? Can this pious dread of sovereignty 
on the part of the Solicitor and the Attorney General prevent the estab- 
lishment of justice by this court? If so, the object of the court lb 
defeated, and the whole enactment is a mere farce ! 

If the acts of the government are to be sheltered by ;t veil of 
imaginary sanctity from all scrutiny or examination by this court — if 
its acts are always to pass upon the world for just, although wrong 
and palpably oppressive, then it is in vain that the law of nations have 
laid down rules of conduct for governments and their citizens. — ( Rath. 
Inst. Nat. Law, vol 2, 598.) 

No sophistry can establish this position, that although a flagrant 
wrong has been done by the government to one of its citizens, wider 



22 

the color of the sovereignty of an existing authority, nor by virtue of it, 
that the injurious act becomes to all effectual purposes a lawful one, 
for no other reason but because it has been done. 

It will not be denied but an obligation rests upon the government 
to prosecute the claims of its citizens against a foreign nation . Before 
it becomes answerable under this obligation, it must examine into the 
rights of the citizen under the claim preferred, and determine upon 
the liability of the foreign government. The national liability is sus- 
pended while the subject matter is regularly sub judice between the 
foreign nation and the claimant, because it is yet undecided whether 
the government will adopt the injury and convert it from a private to 
a public one. 

Having acknowledged the rights of the citizen, not only by one, but 
by repeated subsequent administrations, and declared the liability of 
the foreign government under the law of nations, the responsibility to 
procure indemnity for its citizen under this obligation becomes per- 
fect. The asserted liability of Portugal by this government forecloses 
all controversy between the claimants and the captors, and terminates 
forever all ordinary judicial inquiry upon the matter of it. Having 
thus asserted that " it would make no demand not founded in justice, 
and submit to no ivrong," if justice be refused by the foreign govern- 
ment, then the law of nations gives a remedy, either by solemn war, 
or by reprisals. Having proceeded thus far, the two nations become 
the parties to the controversy. 

Can there be any just sense of national pride or respect for national 
jurisdiction or prerogative, fairly attributable to a just nation, which 
will allow it to go thus farm demanding a right of its citizens against 
a foreign nation, by afterwards receding from and reversing its action, 
and exacting from the people of the United States a blind and super- 
stitious faith in the righteousness and irresponsibility of such a pro- 
ceeding ? 

Then the inquiry arises, from whence does a succeeding adminis- 
tration obtain the power and exclusive right to judge of, and reverse 
the acts of its predecessor, without incurring a direct responsibility 
under this obligation, if it be not for the general welfare of the people — 
and if a treaty be made, sacrificing the rights of the claimants for the 
general welfare, does not the government become directly responsible? 

In order to ascertain if this treaty, and the decision of* the arbiter 
under it, is conclusive against the claimants, we must first enquire 
whether the American government, when administered under General 
Taylor, would have esteemed such a decree just, or whether it would 
not be bound, under the law of nations, by the repeated admissions of 
the rights of the claimants and the declared liability of Portugal for 
the sufferance of the violation of her neutrality, to have resorted to 
reprisals? Can a doubt arise in the mind of the court but that the 
latter conclusion has deen fully established? 

This case must be decided wholly upon the principles of interna- 
tional laio, because it is not a claim strictly against this government, 
but resulting from a responsibility incurred by the government in 
prosecuting a claim of its citizens against a foreign nation. The 
authorities cited from 6 Peters, 729, and 14Peters, 458, by the Solicitor, 

L '0i 



23 

and the only ones on which he relies, are totally inapplicable in this 
case, because the decisions are not based on any question arising under 
the law of nations, involved before this court; nor can the decisions of 
the highest tribunal of a nation be made the Bbield to protect its na- 
tional liability, incurred under the great public law which holds a 
government and its people equally responsible. 

The national liability being fixed, no judicial proceedings can 
diminish it. For if it can, then every nation may make its own de- 
crees to screen it from all obligations arising under the fixed and 
established principles of international law, which would produce the 
annihilation of all justice; and the science of law and government; 
thus driven by the winds of anarchy, would soon founder in the dark 
sea of chaos ! 

If this court holds the decisions in Peters authority in this case, 
then the decisions of the Supreme Court of the United States on qu< 8- 
tions of international law, which we have cited from 1 Oranch and 3 
Dallas, are in direct conflict and opposition to it, though these opin- 
ions are sustained by the supreme tribunal of the world, and the 
authorities of the law of nations. 

But what does the court say in this opinion from 6 Peters? That 
all official actions, within the scope of the officer's powers, whether 
legislative, judicial, or executive, are conclusive of the matters, and 
not to be re-examined, "unless an appeal is provided for , or other re- 
vision, by some appellate or supervisory tribunal, is prescribed by law." 

If this authority be applicable, then the decision makes a special 
reservation fully adapted to this case. The law has provided a sup* r- 
visory tribunal by the establishment of this court, and prescribed the 
revision of cases sent to it by either House of Congress. It lias further 
empowered the court, under the 9th section of the act, after tin <l< vision 
of Congress, to order a rehearing on principles of equity, where the 
court is satisfied a wrong has been done. This reservatory discretion 
given to the court shows the extent of the jurisdiction intended to be 
conferred upon it. If it has granted this jurisdiction, it lias also 
granted the power and confidence to assert the wrongs of its citizens 
and the liability of the government. 

But it would be worse than folly in this case to test the Liability of 
the government by its own laws made to govern its domestic relations 
with its citizens, unconnected with matters or principles relating to 
international law ; because its liability here can only be tested unck f 
that laic by which it is made answerable to other nations. 

In a case before the Mexican commission, sitting at Washington 
under the treaty of 1839, it was held by Judge tfarcy (now Secretary 
of State) and Judge Breckinridge, of Pennsylvania, in opposition to 
the Mexican commissioners, that no act of the government, whether 
executive, legislative, or judiciary, could stand in bar as conclusive 
against the just rights of an American citizen. This decision was 
confirmed by the commission of 1848, under the treaty of G-uadalu] e 
Hidalgo. 

The opinions of that highly eminent and distinguished civilian. 
William Pinkney, delivered at the board of commissioners acting 
under the 7th article of the treaty of 1794, between the Tinted States 



24 

and Great Britain, cover every possible question arising upon this 
claim before the court. The case of the Betsey, Furlong, master, be- 
longing to Baltimore, is this : she was captured in 1793, during the 
war between England and France, on the second day out from the 
French island of G-uadalupe. She was condemned by the vice-ad- 
miralty of Bermuda as lawful prize, and this decision was confirmed 
by the lords of the high court of admiralty, the supreme judicature 
in the kingdom in matters of prize. It was contended by the agent 
of the crown, on the part of the British government, that this decision 
was conclusive against the claimants, and precluded the board from 
re-examining the matter. 

Mr. Pinkney on this point delivered his opinion, and it is to his 
imperishable argument on that occasion that I am deeply indebted 
for the light which has so resplendently relumed upon every dark 
feature of this case, and for whose memory I shall ever entertain the 
deepest sense of gratitude. 

Mr. Pinkney, in maintaining the reverse of this position, cites from 
Rutherford's Institutes of Natural Law, 2 vol., pp. 596, 597, and 598, 
and (at page 207, Wheaton's Life of Pinkney) says : 

" The author I have just quoted proves incontestibly, by arguments 
drawn from the nature and foundation of prize cognizance, that this 
doctrine is absurd and inadmissible ; that neither the United States 
nor the claimants, its citizens, are bound to take for just the sentence 
of the lords if in fact it is not so ; and that the affirmance of an illegal 
condemnation, so far from legitimating the wrong done by the original 
seizure and precluding the neutral from seeking reparation for it 
against the British nation, is peculiarly that very act which consum- 
mates the wrong and indisputably perfects the neutral's right of de- 
manding that reparation through the medium of his own government. ' ' 

The principle contended for in the case of the Betsey by Mr. Pinkney 
is precisely that here raised in the case of the General Armstrong . For 
it is impossible for the court to distinguish between the liability of a 
government in the case of an illegal capture of a neutral vessel by a 
belligerent, and an illegal capture, or the destruction of a belligerent vessel 
under the protection of a neutral 'power. The action of the government, 
in either case, perfects or destroys the national liability. Mr. Pinkney, 
at page 211, ibid, says : 

"If it grants " (or procures) " adequate redress, there is nothing 
to be answerable for ; but if instead of doing so, it completes the 
original injury by rendering it irreparable by any ordinary means, 
the national responsibility is obviously perfect. The injury becomes 
its own ; and the neutral " (or citizen) " from being compelled to ask 
redress against the captor," (or foreigner,) " is now authorized to ask 
it against his nation, which has sheltered him against just demands." — 
' See Grotius, Lib. 2, ch. 21, sec. 1, 2 and 8 ; 2 Ruth. Inst. Nat. Law, 
p. 515.' 

Again, at page 212, he says : 

" But there is no law, nor can a shadow of authority be produced 
to prove that there is, which prescribes to States implicit submission to 
them, when well grounded complaints are made against them. On 
the contrary, it is, under such circumstances, the duty of the State 



25 

whose citizens are oppressed to seek reparation for the damages pro- 
duced by them." 

And further, at page 213, he asks : 

" How is the want of right to pass a decree by which a neutral 
has been injured to be established, if that very decree is admitted to prove 
undeniably that the right existed ?■ How is oppression to be shown or 
redressed, if that which constitutes its essence, and gives to it its charac- 
ter and quality, is precisely that which legitimates and shields it from, 
investigation?- A final, unjust judgment against a neutral, says the 
law of nations, is a good ground for reprisals, because no other mode 
is left," 

Again, at page 223, he says : 

" According to that law, as I have shown above, an illegal sentence 
by the lords, confirmatory of an illegal capture to the prejudice of ;i 
neutral, is a national wrong, for which the British government is to 
make amends. In every correct idea of the subject, the act of the court 
is the act of the nation." 

At page 225, his argument is irresistible. He says : 

"It is inconceivable, that while the British nation is answerable 
for wrongs produced by the acts of its constitutional legislature, even 
after they have received the sanction of admiralty decrees, the acts of 
its prize courts, having no warrant in any law whatsoever, can be 
lifted above the reach of inquiry or exception. And here it is proper 
to notice a suggestion, which we have heard more than once delibe- 
rately repeated, that it is highly improbable that Great Britain would 
consent that the decrees of its highest court of prize should be brought 
into question. Without stating the particular manner in which this 
improbability has been inferred, it may be sufficient to observe that, if 
the suggestion is grounded upon any supposed right on the part of 
Great Britain to insist on the conclusive nature of such decrees, wo 
have already seen that, however such a right may be supposed, it does 
not in truth exist. If it be rested on any other ground, it may be 
answered, that Great Britain has consented to submit the justice of one 
of its highest acts of sovereignty (an act of parliament) to our determi- 
nation; and has also consented to subject to our opinion the propriety 
of a rule of prize cognizance necessarily flowing from, or rather in- 
cluded in, an order of his Majesty in council, and adopted in practice 
by the lords!" 

In conclusion, at page 227, Mr. Pinkney says : 

" It is in this view that 1 have supposed it to bo important to ascer- 
tain by a preliminary inquiry, that neither the United States, nor the 
claimants, their citizens, were bound to receive a* just the sentences oi 
the lords, unless they were so in fact; that such sentences, if unjust, 
instead of shaking off the responsibility of the British nation for tho 
losses and damages resulting from illegal captures and condemnations, 
produced the perfection of that responsibility, and gave to the United 
States an indisputable right, by the law of nations, to require of the 
British government, in behalf of its citizens, adequate compensation 
for those losses and damages." 

This opinion of Mr. Pinkney was fully confirmed by the British 
commissioners, and I refer the court to the whole opinion, which, by 
3 



26 

changing the names of the parties, is nothing more nor less than the 
present case before this court. 

In another case, that of The Sally, Hayes, master, on the power of 
the hoard to entertain a certain class of cases, Mr. Pinkney, at page 
353, ibid, said : 

" The cass of the Betsey, Furlong, gives me authority now to say, 
that this implicit confidence in the maritime tribunals of Great 
Britain (whatever titles they may have to the respect of neutral 
nations) is so far from distinguishing the seventh article of the treaty, 
that even after a decision by the highest prize court in the country 
against the claimant, we are authorized to entertain his claim, inquire 
into the merits of it, and grant compensation against the British gov- 
ernment, if, by the laiu of nations, as applied to the case, we shall 
think it right so to do.' ' 

It has been indisputably shown that this court has been equally em- 
powered by the act creating it, to entertain this claim and inquire into 
the merits of it, precisely in the same manner if it was sitting as com- 
missioners under a treaty. 

If, then, the decree of a prize court, the highest and most authori- 
tative known to the law, is not conclusive, in cases arising under the 
'public law of nations, so as to fix forever the rights of individuals in- 
volved in such a decision ; but, on the contrary, if a commission, 
established between two nations to ascertain the rights of their citizens 
as affected by the conduct of either during the existence of a war, has 
the power to go behind such decision, and ascertain and adjudicate 
these claims as though no such decree had ever been made ; then, how 
can it be maintained that the action of one department of a govern- 
ment, in the exercise of its treaty-making power, is authoritative and 
binding so as to take away private rights, acknowledged repeatedly, 
and in the most solemn forms, to be just, both by the State bound to 
enforce, and the one bound to award compensation ? For it will be 
readily admitted that the executive department, in such a case, is 
clothed with no such ample powers to investigate ; nor is it controlled 
by any such rigid rules of right as a court of justice ; but, on the con- 
trary, it has full and ample power, for the general welfare, to yield 
up demands the most equitable and just, and to gloss over with the 
deceptive coloring of diplomatic sophistry a breach even of the national 
honor, but not without incurring a responsibility. 

And shall it be said that this treaty, thus loosely negotiated, with- 
out observing a strict regard for the rights of the claimants ; which 
withheld the most important evidence to sustain our cause ; which de- 
barred us from representing our rights, and, with no decree upon the 
matter submitted, shields the government from the responsibility it 
assumed towards the claimants ? 

When the award was found to be imperfect and unjust, and that it 
did not decide upon the matter submitted, it should have been rejected 
on the protest of the claimants, as was the case of the northeastern 
boundary question, submitted to the King of the Netherlands, under 
General Jackson. The government, in the plentitude of its power, 
did not think proper to do so. Having accepted of the award, in face 
of our protest, it became responsible for its omissions of duty, under 

* 



27 

its political obligations as well as legal, towards its citizens. Can 
such a treaty stand between tbe claimants and justice, and rob them 
of their rights? 

This has, indeed, been a painful task to me. After tbe decision of 
this case by the court, and its promulgation to the world ; after it 
had decided upon the law, and ordered testimony to be taken, and 
the starving, beggarly claimants, tottering over the grave, gave up 
and expended almost their last cent to defray tbe expenses of pro- 
curing testimony to prove their claims, under the impression and be- 
lief that the speedy justice of this court would recompense them for 
the wrongs of half a century, I have been enforced by their anxious 
inquiries to divulge to them that this court still doubted on their 
rights to justice ! Oh, sirs, it had been better that all these victims 
had long ago suffered death together in the battle they fought to 
sustain the honor of their country's flag, than thus to have been tor- 
tured and racked by their government, in so often holding out vain 
hopes, ending, at last, in eternity, without justice ! 

If the attitude which the government now assumes towards these 
claimants is to be sustained by this court, then it has no right to 
the glory reflected by their achievements upon the national prowess. 

If ample, though tardy justice is not now to be awarded, then 
should everything which tells of the national ingratitnde.be blotted 
out forever. It Avould be a fit appropriation of a portion of the pub- 
lic treasure, the approaches to which, by honest claimants, is beset 
with so many formidable barriers, to employ some vandal hand to 
make a bonfire of every record that tells of their sufferings and their 
wrongs ; to tear from our nation's history that brilliant page, at the 
recital of which so many breasts have been made to heave with 
patriotic emotions ; to blur and deface from the walls of your Capitol 
one of the most touching and beautiful tributes which genius, under 
the guidance of patriotism, has ever been made to pay to heroic 
deeds.* 

"Whilst the blood and treasure freely and voluntarily lavished near 
half a century ago remains unrequited, the swelling tide of patriot- 
ism in the future, called forth by those vicissitudes to which men and 
States are alike subjected, should not be made to turn back in cold- 
ness and darkness upon the popular heart, by such striking and inel- 
ancholly monuments of the national ingratitude, and the national 
dishonor ! 

* Allusion is here made to the fresco painting of the battle of the brig General Armstrong 
in the room of the Committee on Naval Affairs, in tho_new wing'of the Capitol. 



&H f. 



•-V 



. 



LIBRARY OF CONGRESS 




011 896 211 4 



m 






Ms> 



mm 

fm 



i vWr 



